State v. Deslovers

• Decision Date: 02 March 1917
• Docket Number: No. 4725.,4725.
• Citation: 40 R.I. 89,100 A. 64
• Parties: STATE v. DESLOVERS.
• Court: Rhode Island Supreme Court

100 A. 64

40 R.I. 89

STATE

v. DESLOVERS.

No. 4725.

Supreme Court of Rhode Island.

March 2, 1917.

Sweetland, J., dissents.

Exceptions from Superior Court, Providence and Bristol Counties; Elmer J. Rathbun, Judge.

Henri Deslovers was convicted of murder, and he excepts. A number of defendant's exceptions sustained, and case remitted to the superior court, with direction to give defendant new trial.

See, also, 35 R. I. 248, 256, 86 Atl. 657.

Herbert A. Rice, Atty. Gen., and Antonio A. Capotosto, Ass't Atty. Gen. (Zechariah Chafee, Jr., of Providence, of counsel), for the State. Eugene L. Jalbert, of Woonsocket, and John J. Fitzgerald, of Providence, for defendant.

VINCENT, J. On May 6, 1913, the defendant, Henri Deslovers, was indicted by the grand jury for the murder of one Angele Parmentier. On May 19, 1913, he was arraigned and pleaded not guilty, whereupon his trial proceeded, extending over a period of 20 days, and resulting in a verdict of guilty. During the course of the trial the defendant took 219 exceptions, of which 102 have now been abandoned, leaving 117 for our consideration. The questions raised by these exceptions are summarized by the defendant in his brief as follows:

"I. Did the trial court err in sustaining the demurrer of the prosecution to the defendant's plea in abatement, and in denying his motion for discharge?

"II. Did the trial court err in permitting certain witnesses to give evidence concerning Angele Parmentier and her relations with defendant, when there was no evidence before the jury that the body found was that of Angele Parmentier?

"III. Did the trial court err in permitting Emma Boell to testify as to her opinion of height, etc., of Angele Parmentier?

"IV. Did the trial court err in imposing upon the defendant Andre Blanchard as interpreter for certain witnesses for both the state and the defendant?

"V. Did the trial court err in denying the defendant's request that the interpreter be instructed to complete the translation of certain answers left incompletely translated?

"VI. Did the trial court err in denying counsel for the defendant the right to ask of certain witnesses questions purporting to impeach them?

"VII. Did the trial court err in refusing to allow counsel for the defendant to inspect a certain book or memorandum used by Dr. Myers, while on the stand, to testify from?

"VIII. Did the trial court err in permitting the prosecuting attorney to ask questions of certain witnesses regarding disputes, quarrels, and relations existing between Angele Parmentier and the defendant?

"IX. Did the trial court err in permitting the prosecuting attorney to ask questions of certain witnesses regarding the habit of Angele Parmentier as to drinking, and regarding certain statements alleged to have been made by her?

"X. Did the trial court err in allowing in evidence certain statement by Angele Parmentier charging defendant with the killing of other persons?

"XI. Did the trial court err in permitting prosecuting attorney to ask of Eliza Cappaert, a witness for the defense, questions relating to her relations with her husband and to the contents of a certain letter written by her to her husband, Désiré Cappaert, another witness for the defendant?

"XII. Did the trial court err in permitting the prosecuting attorney to ask of the defendant and Desire Cappaert questions in connection with certain alleged previous convictions?

"XIII. Did the trial court err in admitting in evidence certain photographs, trunks, and their contents, and clothing belonging to Angele Parmentier?

"XIV. Did the trial court err in making certain remarks in the presence of the jury?

"XV. Did the trial court err in permitting the Attorney General to make certain statements in his argument to the jury?

"XVI. Did the trial court err in refusing to grant the defendant's motion for a new trial?"

Some of these exceptions do not appear to demand specific discussion, and we shall therefore take up for consideration the more important questions which seem to require particular examination.

The defendant had been previously indicted on September 16, 1912, for the same offense. To that indictment he pleaded not guilty on October 7, 1912, and was thereupon committed without bail by order of the superior court. In April, 1913, the defendant petitioned this court for a writ of habeas corpus, setting forth in such petition that he was imprisoned and unjustly and unlawfully deprived of his personal liberty and held in custody in our state prison by the warden thereof, and that his detention in such prison was in violation of section 17 of chapter 354, General Laws of Rhode Island 1909, which provides that:

"Every person who shall be indicted for either of said crimes (including the crime of murder) and shall be imprisoned under the indictment shall be tried or bailed within six months next after the time at which he shall plead to such indictment, if he demand a trial, unless it shall appear to the court that some material witness in behalf of the state has been enticed away or is prevented from attending court by some unavoidable accident."

Upon a hearing of this petition this court directed that a writ of habeas corpus issue. The opinion of this court upon such petition is to be found in Re Henri Deslovers for Writ of Habeas Corpus, 35 R. I. 248, 86 Atl. 657, and upon the petition for reargument 35 R. I. 256, 86 Atl. 657.

Following this opinion the original indictment was nolle prossed by the Attorney General, and upon presentation of the case to another grand jury the present indictment was found under which the defendant was subsequently tried and convicted. On May 8, 1913, the defendant filed a special plea in bar and motion for discharge, wherein he set up the previous indictment and claimed that his release from imprisonment thereunder forever barred the state from further imprisoning or prosecuting him on account of the crime for which he was in said first indictment charged. To this plea and motion the Attorney General demurred, and upon a hearing, in the superior court, the demurrer to the plea was sustained and the motion to discharge denied. To this decision of the superior court the defendant took an exception, and the correctness of such decision is now before us under defendant's exceptions numbered 217 and 218.

In construing the statute, under which the petition for a writ of habeas corpus was brought, and in determining its scope and bearing, we were necessarily led to consider what effect a discharge from imprisonment would have upon any future proceedings which might be instituted looking to the finding of another indictment for the same offense and in our opinion upon the motion for reargument, in order that any misunderstanding on this point might be avoided, we felt constrained to say that:

"We do not mean by 'discharge' that the prisoner is to be released from the consequences of the crime of which he is accused, but simply that he cannot be further detained in prison and deprived of his liberty under the present indictment.

In section 16 of chapter 305 of the General Laws of 1909, relating to habeas corpus, it is provided that, 'If no legal cause be shown for the imprisonment or restraint, the court shall discharge the party therefrom.' The language of this section would seem to apply to the case under consideration and that it was contemplated thereby that in a case where the detention was illegal the prisoner should be discharged from such imprisonment or restraint only. * * * As we have before said, section 17 of chapter 354 does not provide in express terms for the discharge of the prisoner, nor does it contain any language suggesting that a failure to try him or bail him within six months should go any further than to bring about his release from confinement."

A further examination now of the same question fails to lead us to any different view from that expressed in our opinion upon the motion for reargument. We cannot assume, in the absence of any language to that effect, that it was the intention of the General Assembly that a defendant should be discharged from imprisonment and consequently at the same time be exculpated from all the consequences of his crime. Besides, the contrary intent of the General Assembly is indicated in section 28 of chapter 305, which says:

"No person who has been discharged upon a writ of habeas corpus shall be again imprisoned or restrained for the same cause, unless he shall be indicted therefor or convicted thereof. * * *"

The defendant has cited some cases in support of his contention that a person once discharged under a writ of habeas corpus is immune from further prosecution for the same offense. While a decision in another jurisdiction may be of value its usefulness largely depends upon the similarity between the statute under which such decision is rendered and our own statute which is to be construed.

Our statute provides (section 17, c. 354) that every person who shall be indicted and shall be imprisoned under the indictment shall be tried or bailed within six months next after the time at which he shall plead to such indictment, etc. This section makes no express provision, nor does it contain any language from which any inference can be drawn, as to the effect of such failure to try or bail within six months upon the subsequent status of the party indicted with reference to his further prosecution for the crime. This being so, we think it is reasonable to assume that it was intended that under such conditions a defendant should be left to his remedy by way of a writ of habeas corpus, and that is what the defendant in the present case resorted to.

Our statute further provides (section 16, c. 305) that if upon a hearing upon a writ of habeas corpus "no legal cause be shown for the imprisonment or restraint, the court shall discharge the party therefrom." The word "therefrom" as thus used must be held to refer to ...